A party seeking to introduce additional evidence under Order 41 Rule 27(1)(aa) must establish that, notwithstanding the exercise of due diligence, the evidence was not within his knowledge or could not be produced by him at the time the decree appealed against was passed.

( 1 ) AN alleged Will was sought to be introduced under Order 41 Rule 21 in appeal No. 27 of 1993 pending before the learned Additional District Judge, IInd Court, Moradabad, arising out of a decree passed in original suit No. 207 of 1977 By an order dated 1-4-1998 passed by the learned Additional District Judge in the said appeal, the application moved in this regard was rejected. This order is under challenge in the present writ petition.

( 2 ) MR. Rajesh Tandon, learned counsel for the petitioner, contends that the learned lower appellate Court had illegally exercised his jurisdiction in rejecting the said application in the facts and circumstances of the case. According to him, acceptance of additional evidence is a rule and refusal is an exception. In order to decide the question at issue such evidence should have been allowed. He relies on a decision in the case of Jaipur Development Authority v. Smt. Kailashwati Devi, 1997 SCFBRC 386 : (AIR 1997 SC 3243 ). He further contends that it was never known to the petitioner as to in whose custody the said Will was lying though he had disclosed in his written statement as well as in the evidence. It was only in the morning of 1-4-1988 that he came to know about the said Will from Phool Singh. Thus, this was one of the reason for which the petitioner was unable to produce the Will in the trial Court despite his due diligence. On this ground he prays that the impugned order dated 1-4-1998 should be set aside.

( 3 ) MR. K. K. Arora, learned counsel for the opposite party on the other hand contends that the application under Order 21 Rule 27 does not contain any of the ingredients as provided in sub-rule (1) of Rule 27 of Order 41. He further contends that it is not supported by any affidavit, by which it can be ascertained that the statement which are being advanced seeking to bring about the ingredients of sub-rule (1) of Rule 27, Order 41, cannot be accepted. He next contends that the said application did not contain any of the ingredients mentioned in sub-rule (1) of Rule 27, Order 41. Therefore, the order passed by the learned appellate Court was justified.

( 4 ) I have heard Mr. Tandon and Mr. Arora both at length and have also perused the record placed before this Court.

( 5 ) ORDER 41 Rule 27 permits the parties to an appeal to produce additional evidence upon certain contingencies as prescribed therein which are in the following terms :"27 Production of additional evidence in appellate Court : (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause,the appellate Court may allow such evidence or document to be produced or witness to be examined. "

( 6 ) RULE 27 begins with a negative condition. It prescribes that parties to an appeal shall not be entitled to produce additional evidence, oral or documentary in the appellate Court. Thus, it creates a complete prohibition in respect of production of evidence, oral or documentary in the appeal. But, however, it has made some exceptions which are contained in clause (a), (aa) and (b ). Thus, the negative condition contained in the scheme of the rule, indicates that such evidence can be admitted only when the conditions mentioned in clause (a), (aa) and (b) are fulfilled. When the statute specifically prescribes particular conditions, in which such evidence can be